CARES Act

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Reminder regarding a recent update June 30, 2021:

In regards to the CARES Act 30-Day Notice to Vacate, in late April (Please see below) HUD updated their CARES Act FAQ document, adding a question regarding 30-day Notices to Vacate for non-payment cases. Now there is a new Q25, where HUD confirms that the 30 Day Notice to Vacate requirement remains in effect for all properties that are “COVERED” under the CARES Act definitions. (see pg. 18 for Q25.)

What does this mean if you are a “Covered Property?”

(i.e. one with a ‘federally backed’ mortgage. Scroll below to learn more about covered properties)

It means that Sec. 4024(c) of the CARES Act will continue to require a 30 Day Notice to Vacate be sent to any resident who is behind in their payment of rent before you can submit an eviction case to the Court (NOTE: the 30-day NTV is not required to file for ‘other’ breach of lease cases, only non-payment ones.)

Going forward:
  • You should not change your practice of providing a 30-day NTV to each non-paying tenant unless: (a) your Property’s mortgage loan type changes (due to a sale or a re-finance, in which case let us know via the form at the bottom of this page); or (b) HUD or some other Federal authority confirms that this 30 Day Notice to Vacate requirement has come to an end or is no longer applicable.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Coronovirus Response and Relief Supplemental Appropriations Act of 2021 provide “fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for American industries.” The CARES Act was signed into law on March 27, 2020. On August 6, 2020, the Federal Housing Finance Agency (FHFA – the parent entity for Fannie Mae and Freddie Mac) issued a press release announcing a new CARES Act-related mandate to increase awareness of tenant protections contained in the CARES Act. this 2.2 trillion economic stimulus bill includes a $300 billion one-time cash payment to individuals people who submit a tax return in America with the creation of the Paycheck protection program that provides forgivable loans to small businesses. Included in the CARES Act was a 120 – day moratorium, which prohibited certain property owners from filing non-payment of rent evictions, as well as collecting late fees. Updates will be posted in order – with the most recent first, below.

Covered Properties

For each property that DOES have that type of federally-backed financing, the CARES Act’s 120 Day late fee and eviction “moratorium” applied to the Property through July 25th. We call these “Covered Properties” and label them in our system so we can differentiate them from “Exempt Properties” (see below for more)

If you know your Property is a “Covered Property” under the Act, then please complete the form below letting us know the name of your Property and its status as a “Covered Property,” so we may then note that in our system.

For Covered Properties, remember: the CARES Act also requires that Covered Properties must provide a 30 Day Notice to Vacate to every tenant who is behind on their rent before you can submit a case to the Court for eviction due to the non-payment. The expiration of the “eviction moratorium” on July 25th did NOT remove the obligation to send these 30 Day NTV notices, however – we are still required to collect these Notices from you as part of our case review process unless/until we have a change in the law or a binding clarification of this provision. So, if you’re a “Covered Property”, until further notice, please always send BOTH a 30 Day NTV notice and a “forbearance letter” (see below for more information) to us as part of all new case submissions.

Exempt Properties

For each property that does NOT have any “federally backed mortgage” financing, those properties are able to conduct business with the Courts based on their pre-pandemic notice requirements. However, in ALL States (including our 3 service States – NC/SC/GA),  proving “exempt” status enables you to proceed with your cases in Court without an additional 30 day Notice to Vacate being sent to the tenant first. So, having proof that you are NOT a “covered property” is critical to our Team being able to approve your cases for filing. (NOTE FOR SC: a CARES Act certification/affidavit is still a required element and must be provided with each new case sent to the Courts for filing, so CARES status takes on even greater importance if you are one of these clients.)

So, in order to proceed for you, we need all clients to reach out to their lender/servicer and ask them to provide formal written confirmation of whether the property has a “federally backed multifamily mortgage loan” as defined in the CARES Act. If the Property is backed with a loan covered by the CARES Act, then we will note it in our records; but, if the Property is either not federally backed or is owned free and clear, then we will need the following information so that we can provide it as part of the CARES certification documentation that is now required:

  • For any properties with a mortgage loan, but that mortgage is not federally backed, we need one of two things:
    • For Multi-Family Clients, a signed letter on letterhead (not an email) from the lender/servicer (or from a C-Suite Executive or General Counsel for the Company) that includes crucial information as in the example below would suffice. If you provide a letter from your management company or the owner rather than the lender, you will need to adjust the language. Regardless of who writes the letter, it must be on letterhead and it must include the property’s legal name and physical address and the letter must have a signature block with the name and title of the person signing it.

       

      Sample:

      Our Company is the [lender]/[servicer] of the loan(s) issued to or for the benefit of the Owner of the property known as [Property Name] – [Owner Legal Name] located at [Property address].  As such we are familiar with the nature, backing and issuance information for all such loan(s).  We hereby confirm that there are no loan(s) in place for this Property that meet the definition of the term “Federally Backed Multifamily Mortgage” as defined by Sec. 4024(a)(5) of the Act.

    • For Single-Family Clients, we need an affidavit from a person with personal knowledge of the facts about the Loan (i.e. not the Property Manager who is merely relying on what the Owner told them), and we need an Affidavit for EVERY property that is submitted to us for a new case filing. We suggest you use this form Affidavit.
  • For properties not subject to a mortgage, we’ll need the Owner to provide us with an Affidavit confirming that it is not subject to financing, so that when we prepare and submit cases for any evictions that are needed during the Moratorium period; the Affidavit can be provided to the Court so that it is clear that the eviction filing is proper under the Law. For single-family properties (as opposed to Multi-Family Apartment Communities), we ask that you use this affidavit instead.

Once you have that written confirmation, please upload it to our partners using the form below so that we can have all your properties properly entered into our system as soon as possible so we know whether we’ll be able to file an eviction case with the Court for you.

Updates:

On April 26th, a  press release from HUD highlighted that they had recently issued an update to their COVID-19 Multifamily FAQ page. In that update, they confirmed that their reading of Sec. 4024(c) of the CARES Act is that the 30 day Notice to Vacate requirement remains in effect and has not expired, like many have hoped and opined in the past (see Q25 on pg. 18).

That means that if you are a “Covered Property,” Sec. 4024(c) of the CARES Act still requires a 30-day Notice to Vacate be sent to your residents before non-payment evictions can be filed according to HUD’s April, 2021 legal guidance. You should be prepared to provide a copy of such a 30 day NTV to our Firm with every non-payment case you submit to us, unless either: a) your property’s loan changes (due to a re-finance); OR b) until HUD or some other Federal authority confirms that this 30 day notice requirement has come to an end.